Sunday, 23 September 2007

I blogged a couple of months ago about the controversy surrounding an advertising campaign for Virgin Mobile Australia, which featured photographs taken from photo-sharing website Flickr. The photos were licensed under Creative Commons licences, but apparently the advertising company didn't ask permission from the photographers, and nor did they obtain model releases from the subjects of the photographs.

There's been plenty of speculation about what legal avenues might be open to both the Flickr photographers and their subjects, but it looks like we'll soon get some answers, as the family of one of the people pictured in the advertising campaign has sued both the Australian and United States arms of Virgin Mobile in a Texas court.

The suit was instigated by the family of Flickr user Alison Chang, who was photographed by fellow Flickr user and Chang's youth counsellor Justin Wong. That photograph was used in one of the Virgin advertisements, as can be seen in this photograph, accompanied by the caption "DUMP YOUR PEN FRIEND".

At this stage the suit seems to be based on actions in libel and invasion of privacy, based on news reports (I'm currently trying to find the actual court documents without much luck - does anyone know where Texas court documents are available online?). Virgin Mobile in the US has apparently sought to be removed as a party as it claims that it had nothing to do with the advertisements. Virgin Mobile Australia says that it fully complied with the Creative Commons licence (CC-BY-2.0) that the image was licenced under.

As another twist, the suit names a third defendant in Creative Commons; exactly what cause of action is claimed to lie against them at this stage is not clear.

This case is interesting because of the intersection of multiple types of intellectual property rights, along with other related rights. There are a whole range of rights which are potentially involved just in this fairly trivial case of one person taking a photo of another person, only one type of which - the economic rights of copyright - are dealt with by free content licences such as the Creative Commons licences. Should this case ultimately reach a decision (it may well face some jurisdictional problems) it is likely to have significant implications for the free content movement.